A Texas-based encrypted email service recently revealed to be used by Edward Snowden – Lavabit – announced yesterday it was shutting itself down in order to avoid complying with what it perceives as unjust secret US court orders to provide government access to its users’ content. “After significant soul searching, I have decided to suspend operations,” the company’s founder, Ladar Levinson, wrote in a statement to users posted on the front page of its website. He said the US directive forced on his company “a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit.” He chose the latter.

CNET’s Declan McCullagh smartly speculates that Lavabit was served “with [a] federal court order to intercept users’ (Snowden?) passwords” to allow ongoing monitoring of emails; specifically: “the order can also be to install FedGov-created malware.” After challenging the order in district court and losing – all in a secret court proceeding, naturally – Lavabit shut itself down to avoid compliance while it appeals to the Fourth Circuit.

This morning, Silent Circle, a US-based secure online communication service, followed suit by shutting its own encrypted email service. Although it said it had not yet been served with any court order, the company, in a statement by its founder, internet security guru Phil Zimmerman, said: “We see the writing on the wall, and we have decided that it is best for us to shut down Silent Mail now.”

What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it. Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told that they would face serious criminal sanctions if they publicly discuss what is being done to their company. Thus we get hostage-message-sounding missives like this:

I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on – the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.”

Does that sound like a message coming from a citizen of a healthy and free country? Secret courts issuing secret rulings invariably in favor of the US government that those most affected are barred by law from discussing? Is there anyone incapable at this point of seeing what the United States has become? Here’s the very sound advice issued by Lavabit’s founder:

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.“

As security expert Bruce Schneier wrote in a great Bloomberg column last week, this is one of the key aspects of the NSA disclosures: the vast public-private surveillance partnership. That’s what makes Lavabit’s stance so heroic: as our reporting has demonstrated, most US-based tech and telecom companies (thoughnotall) meekly submit to the US government’s dictates and cooperate extensively and enthusiastically with the NSA to ensure access to your communications.

Snowden, who told me today that he found Lavabit’s stand “inspiring”, added:

“Ladar Levison and his team suspended the operations of their 10 year old business rather than violate the Constitutional rights of their roughly 400,000 users. The President, Congress, and the Courts have forgotten that the costs of bad policy are always borne by ordinary citizens, and it is our job to remind them that there are limits to what we will pay.

“America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren’t fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not.

“When Congress returns to session in September, let us take note of whether the internet industry’s statements and lobbyists – which were invisible in the lead-up to the Conyers-Amash vote – emerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress.”

The growing (and accurate) perception that most US-based companies are not to be trusted with the privacy of electronic communications poses a real threat to those companies’ financial interests. A report issued this week by the Technology and Innovation Foundation estimated that the US cloud computing industry, by itself, could lose between $21 billion to $35 billion due to reporting about the industry’s ties to the NSA. It also notes that other nations’ officials have been issuing the same kind of warnings to their citizens about US-based companies as the one issued by Lavabit yesterday:

And after the recent PRISM leaks, German Interior Minister Hans-Peter Friedrich declared publicly, ‘whoever fears their communication is being intercepted in any way should use services that don’t go through American servers.’ Similarly, Jörg-Uwe Hahn, a German Justice Minister, called for a boycott of US companies.”

The US-based internet industry knows that the recent transparency brought to the NSA is a threat to their business interests. This week, several leading Silicon Valley and telecom executives met with President Obama to discuss their “surveillance partnership”. But the meeting was – naturally – held in total secrecy. Why shouldn’t the agreements and collaborations between these companies and the NSA for access to customer communications not be open and public?

Obviously, the Obama administration, telecom giants, and the internet industry are not going to be moved by appeals to transparency, privacy and basic accountability. But perhaps they’ll consider the damage being done to the industry’s global reputation and business interests by constructing a ubiquitous spying system with the NSA and doing it all in secret.

It’s well past time to think about what all this reflects about the US. As the New York Times Editorial Page put it today, referencing a front-page report from Charlie Savage enabled by NSA documents we published: “Apparently no espionage tool that Congress gives the National Security Agency is big enough or intrusive enough to satisfy the agency’s inexhaustible appetite for delving into the communications of Americans.” The NYT added:

Time and again, the NSA has pushed past the limits that lawmakers thought they had imposed to prevent it from invading basic privacy, as guaranteed by the Constitution.”

I know it’s much more fun and self-satisfying to talk about Vladimir Putin and depict him as this omnipotent cartoon villain. Talking about the flaws of others is always an effective tactic for avoiding our own, and as a bonus in this case, we get to and re-live Cold War glory by doing it. The best part of all is that we get to punish another country for the Supreme Sin: defying the dictates of the US leader.

[Note how a country’s human rights problems becomes of interest to the US political and media class only when that country defies the US: hence, all the now-forgotten focus on Ecuador’s press freedom record when it granted asylum to Julian Assange and considered doing so for Edward Snowden, while the truly repressive and deeply US-supported Saudi regime barely rates a mention. Americans love to feign sudden concern over a country’s human rights abuses as a tool for punishing that country for disobedience to imperial dictates and for being distracted from their own government’s abuses: Russia grants asylum to Snowden –> Russia is terrible to gays! But maybe it’s more constructive for US media figures and Americans generally to think about what’s happening to their own country and the abuses of the own government, the one for which they bear responsibility and over which they can exercise actual influence.]

Lavabit has taken an impressive and bold stand against the US government, sacrificing its self-interest for the privacy rights of its users. Those inclined to do so can return that support by helping it with lawyers’ fees to fight the US government’s orders, via this paypal link provided in the company’s statement.

One of the most remarkable, and I think enduring, aspects of the NSA stories is how much open defiance there has been of the US government. Numerous countries around the world have waved away threats, from Hong Kong and Russia to multiple Latin American nations. Populations around the world are expressing serious indignation at the NSA and at their own government to the extent they have collaborated. And now Lavabit has shut itself down rather than participate in what it calls “crimes against the American people”, and in doing so, has gone to the legal limits in order to tell us all what has happened. There will undoubtedly be more acts inspired by Snowden’s initial choice to unravel his own life to make the world aware of what the US government has been doing in the dark.

Canadian government agencies have been accused of conflating extremism with peaceful protests, such as the ongoing campaign against Keystone XL tar sands pipeline project. Photograph: Jonathan Ernst/Reuters

Monitoring of environmental activists in Canada by the country’s police and security agencies has become the “new normal”, according to a researcher who has analysed security documents released under freedom of information laws.

Security and police agencies have been increasingly conflating terrorism and extremism with peaceful citizens exercising their democratic rights to organise petitions, protest and question government policies, said Jeffrey Monaghan of the Surveillance Studies Centre at Queen’s University in Kingston, Ontario.

The RCMP, Canada’s national police force, and the Canadian Security Intelligence Service (CSIS) view activist activities such as blocking access to roads or buildings as “forms of attack” and depict those involved as national security threats, according to the documents.

Protests and opposition to Canada’s resource-based economy, especially oil and gas production, are now viewed as threats to national security, Monaghan said. In 2011 a Montreal, Quebec man who wrote letters opposing shale gas fracking was charged under Canada’s Anti-Terrorism Act. Documents released in January show the RCMP has been monitoring Quebec residents who oppose fracking.

“Any Canadians going to protest the Keystone XL pipeline in Washington DC on Sunday had better take precautions,” Monaghan said.

In a Canadian Senate committee on national security and defence meeting Monday Feb 11 Richard Fadden, the director of CSIS said they are more worried about domestic terrorism, acknowledging that the vast majority of its spying is done within Canada. Fadden said they are “following a number of cases where we think people might be inclined to acts of terrorism”.

Canada is at very low risk from foreign terrorists but like the US it has built a large security apparatus following 9/11. The resources and costs are wildly out of proportion to the risk said Monaghan.

“It’s the new normal now for Canada’s security agencies to watch the activities of environmental organisations,” he said.

Surveillance and infiltration of environmental protest movement has been routine in the UK for some time. In 2011 a Guardian investigation revealed that a Met police officer had been living undercover for seven years infiltrating dozens of protest groups.

Canadian security forces seem to have a “fixation” with Greenpeace, continually describing them as “potentially violent” in threat assessment documents, said Monaghan.

“We’re aware of this” said Greenpeace Canada’s executive director Bruce Cox, who met the head of the RCMP last year. “We’re an outspoken voice for non-violenceand this was made clear to the RCMP,” Cox said.

He said there was real anger among Canadians about the degradation of the natural environment by oil, gas and other extractive industries and governments working for those industries and not in the public interest. Security forces should see Greenpeace as a “plus”, a non-violent outlet for this anger, he argued. “It is governments and fossil fuel industry who are the extremists, threatening the prosperity of future generations.”

Accused Sept. 11 co-conspirator Ramzi Binalshibh is shown while attending his military hearing at the Guantanamo Bay U.S. Naval Base in Cuba. (AP/Janet Hamlin)

Most of the 168 detainees at Guantanamo have been imprisoned by the U.S. Government for close to a decade without charges and with no end in sight to their captivity. Some now die at Guantanamo, thousands of miles away from their homes and families, without ever having had the chance to contest accusations of guilt. During the Bush years, the plight of these detainees was a major source of political controversy, but under Obama, it is now almost entirely forgotten. On those rare occasions when it is raised, Obama defenders invoke a blatant myth to shield the President from blame: he wanted and tried so very hard to end all of this, but Congress would not let him. Especially now that we’re in an Election Year, and in light of very recent developments, it’s long overdue to document clearly how misleading that excuse is.

Last week, the Obama administration imposed new arbitrary rules for Guantanamo detainees who have lost their first habeas corpus challenge. Those new rules eliminate the right of lawyers to visit their clients at the detention facility; the old rules establishing that right were in place since 2004, and were bolstered by the Supreme Court’s 2008 Boumediene ruling that detainees were entitled to a “meaningful” opportunity to contest the legality of their detention. The DOJ recently informed a lawyer for a Yemeni detainee, Yasein Khasem Mohammad Esmail, that he would be barred from visiting his client unless he agreed to a new regime of restrictive rules, including acknowledging that such visits are within the sole discretion of the camp’s military commander. Moreover, as SCOTUSblog’s Lyle Denniston explains:

Besides putting control over legal contacts entirely under a military commander’s control, the “memorandum of understanding” does not allow attorneys to share with other detainee lawyers what they learn, and does not appear to allow them to use any such information to help prepare their own client for a system of periodic review at Guantanamo of whether continued detention is justified, and may even forbid the use of such information to help prepare a defense to formal terrorism criminal charges against their client.

The New York Times Editorial Page today denounced these new rules as “spiteful,” cited it as “the Obama administration’s latest overuse of executive authority,” and said “the administration looks as if it is imperiously punishing detainees for their temerity in bringing legal challenges to their detention and losing.” Detainee lawyers are refusing to submit to these new rules and are asking a federal court to rule that they violate the detainees’ right to legal counsel.

But every time the issue of ongoing injustices at Guantanamo is raised, one hears the same apologia from the President’s defenders: the President wanted and tried to end all of this, but Congress — including even liberals such as Russ Feingold and Bernie Sanders — overwhelming voted to deny him the funds to close Guantanamo. While those claims, standing alone, are true, they omit crucial facts and thus paint a wildly misleading picture about what Obama actually did and did not seek to do.

What made Guantanamo controversial was not its physical location: that it was located in the Caribbean Sea rather than on American soil (that’s especially true since the Supreme Court ruled in 2004 that U.S. courts have jurisdiction over the camp). What made Guantanamo such a travesty — and what still makes it such — is that it is a system of indefinite detention whereby human beings are put in cages for years and years without ever being charged with a crime. President Obama’s so-called “plan to close Guantanamo” — even if it had been approved in full by Congress — did not seek to end that core injustice. It sought to do the opposite: Obama’s plan would have continued the system of indefinite detention, but simply re-located it from Guantanamo Bay onto American soil.

Long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. President Obama fully embraced indefinite detention — the defining injustice of Guantanamo — as his own policy.

In February, 2009, the Obama DOJ told an appellate court it was embracing the Bush DOJ’s theory that Bagram detainees have no legal rights whatsoever, an announcement that shocked the judges on the panel hearing the case. In May, 2009, President Obama delivered a speech at the National Archives — in front of the U.S. Constitution — and, as his plan for closing Guantanamo, proposed a system of preventative “prolonged detention” without trial inside the U.S.; The New York Times – in an article headlined “President’s Detention Plan Tests American Legal Tradition” – said Obama’s plan “would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.” In January, 2010, the Obama administration announced it would continue to imprison several dozen Guantanamo detainees without any charges or trials of any kind, including even a military commission, on the ground that they were “too difficult to prosecute but too dangerous to release.” That was all Obama’s doing, completely independent of anything Congress did.

When the President finally unveiled his plan for “closing Guantanamo,” it became clear that it wasn’t a plan to “close” the camp as much as it was a plan simply to re-locate it — import it — onto American soil, at a newly purchased federal prison in Thompson, Illinois. William Lynn, Obama’s Deputy Defense Secretary, sent a letter to inquiring Senators that expressly stated that the Obama administration intended to continue indefinitely to imprison some of the detainees with no charges of any kind. The plan was classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S.

Recall that the ACLU immediately condemned what it called the President’s plan to create “GITMO North.” About the President’s so-called “plan to close Guantanamo,” Executive Director Anthony Romero said:

The creation of a “Gitmo North” in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.

Alarmingly, all indications are that the administration plans to continue its predecessor’s policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it’s occurring in Cuba or in Illinois.

In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one’s accusers. . . . .The Obama administration’s announcement today contradicts everything the president has said about the need for America to return to leading with its values.

In fact, Obama’s “close GITMO” plan — if it had been adopted by Congress — would have done something worse than merely continue the camp’s defining injustice of indefinite detention. It would likely have expanded those powers by importing them into the U.S. The day after President Obama’s speech proposing a system of “prolonged detention” on U.S. soil, the ACLU’s Ben Wizner told me in an interview:

It may to serve to enshrine into law the very departures from the law that the Bush administration led us on, and that we all criticized so much. And I’ll elaborate on that. But that’s really my initial reaction to it; that what President Obama was talking about yesterday is making permanent some of the worst features of the Guantanamo regime. He may be shutting down the prison on that camp, but what’s worse is he may be importing some of those legal principles into our own legal system, where they’ll do great harm for a long time.

So even if Congress had fully supported and funded Obama’s plan to “close Guantanamo,” the core injustices that made the camp such a travesty would remain. In fact, they’d not only remain, but would be in full force within the U.S. That’s what makes the prime excuse offered for Obama — he tried to end all of this but couldn’t – so misleading. He only wanted to change the locale of these injustices, but sought fully to preserve them.

Indeed, as part of that excuse, one frequentlyhears that even liberal civil liberties stalwarts in the Senate — such as Russ Feingold and Bernie Sanders — voted to deny funding for the closing of Guantanamo: as though it is they who are to blame for these enduring travesties, rather than Obama. But this, too, is misleading in the extreme.

The reason these Democratic Senators voted to deny funds for closing Guantanamo is not because they lacked the courage to close Guantanamo. It’s because they did not want to fund a plan to close the camp without knowing exactly what Obama planned to do with the detainees there — because people like Feingold and Sanders did not want to fund the importation of a system of indefinite detention onto U.S. soil. Here’s what actually happened when the Senate, including most Democrats, refused to fund the closing of Guantanamo:

[White House Press Secretary Robert Gibbs] added Obama has not yet decided where some of the detainees will be sent. A presidential commission is studying the issue. . . .

Sen. Daniel Inouye, D-Hawaii, chairman of the Appropriations Committee, favors closing Guantanamo, and the legislation his panel originally sent to the floor provided money for that purpose once the administration submitted a plan for the shutdown.

In changing course and seeking to delete the funds, he said, “The fact that the administration has not offered a workable plan at this point made that decision rather easy.”

Can that be any clearer? They would have voted to fund the closing of Guantanamo, but only once they knew what Obama’s plan was for the detainees there. Feingold — whose vote against funding the closing of Guantanamo is invariably cited by Obama defenders — wrote a letter to the President specifically to object to any plan to import the system of indefinite detention onto U.S. soil:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.

Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold was not going to vote for a plan to close Guantanamo if it meant that its core injustice — indefinite detention — was going simply to be re-located onto American soil, where it would be entrenched rather than dismantled. That, as all of this evidence makes clear, is why so many Democratic Senators voted to deny funding for the closing of Guantanamo: not because they favored the continuation of indefinite detention, but precisely because they did not want to fund its continuation on American soil, as Obama clearly intended.

Now, here we are, almost four years after the vow to close Guantanamo was enshrined in an Executive Order, and the rights of detainees — including the basic right to legal counsel — are being constricted further, in plainly vindictive ways. Conditions at Guantanamo are undoubtedly better than they were in 2003, and some of the deficiencies in military commissions (for the few who appear before them) have been redressed. But the real stain of Guantanamo — keeping people locked up in cages for years with no charges — endures. And contrary to the blatant myth propagated by Obama defenders, that has happened not because Obama tried but failed to eliminate it, but precisely because he embraced it as his own policy from the start.

Today brings more high-level classified disclosures from an administration fixated on punishing whistleblowers

Army Pfc. Bradley Manning is escorted out of a courthouse in Fort Meade, Md., Wednesday, Dec. 21, 2011, after a military hearing that will determine if he should face court-martial for his alleged role in the WikiLeaks classified leaks case went on recess for the day. (AP Photo/Patrick Semansky)(Credit: AP)

The Obama administration’s war on whistlebowers continues unabated this week on two fronts. First, several hearings were held in the court-martial prosecution of Bradley Manning, during which military prosecutors argued that evidence that Manning’s alleged leaks did no harm to national security, as well as evidence of his inhumane pre-trial detention conditions, should both be completely suppressed (in contrast to most American media outlets, which have ignored the proceedings entirely, Firedoglake’s superb young writer, Kevin Gosztola, is providing typically comprehensive coverage). Meanwhile, in a federal court in Virginia this morning, former CIA official John Kiriakou is seeking dismissal of most of the criminal charges brought against him by the DOJ for allegedly leaking details of the Bush era torture program; Kiriakou is claiming he is the victim of vindictive prosecution (as former NSA official Thomas Drake, who himself was prosecuted (unsuccessfully) by the Obama DOJ for whistleblowing, put it this morning: “Commit torture: receive exec branch/DoJ protection. Whistleblow on torture w/lawful disclosures: become criminal defendant like John Kiriakou” [Twitter typos corrected]).

But the worst part of this whistleblower war, beyond the obvious threats it poses to transparency and a free press, is how purely selective it is. Just as Lynndie England went to prison for her detainee abuse while Don Rumsfeld, Dick Cheney and John Yoo went on lucrative book tours for theirs, it is only low- to mid-level leakers who are punished by the Obama DOJ, and then only for the crime of embarrassing the U.S. Government rather than glorifying it. High-level Obama administration leakers disclose classified information at will, without the slightest fear of punishment. One can pick up a newspaper or listen to a television news broadcast almost every day and find examples of leaks from Obama’s high-level officials far more serious than those allegedly committed by the Bradley Mannings and Thomas Drakes of the world. From today’s New York Times article on Syria:

In Washington, a senior American official who is tracking Syria closely said Thursday that American intelligence reports had concluded that Syrian forces were moving some parts of their chemical weapons arsenal to safeguard it from falling into rebel hands, not to use it. “They’re moving it to defend it in some of the most contested areas,” said the official, who spoke on condition of anonymity because of the classified intelligence reports.

Quoting classified American intelligence reports on Syria to TheNew York Times is a more serious leak than any of those serving as the basis for the multiple espionage prosecutions brought by the Obama DOJ. The difference is that this is a “senior official” rather than a low-level one, and it’s not done with the intent to expose high-level corruption, deceit or illegality. Therefore, like all the other high-level crimes shielded from accountability by the Obama administration, it will be protected. Therein lies the clear lesson about the real purpose of the Obama war on whistleblowers.

* * * * *

New York Times columnist David Brooks carefully cultivates a centrist demeanor on domestic political questions, but on foreign policy, the former Weekly Standard writer and full-fledged Iraq War advocate is as neoconservative as it gets. Today, following in the footsteps of the progressive Center for American Progress, Brooks devotes his column to hailing the grand success of President Obama’s foreign policy. Entitled “Where Obama Shines,” the column argues: “it should be noted that Barack Obama has been a good foreign policy president.” Deeming this record “impressive,” he gushes: “Obama has moved more aggressively both to defeat enemies and to champion democracy. He has demonstrated that talk of American decline is hooey. The U.S. is still responsible for maintaining global order, for keeping people, goods and ideas moving freely.” Brooks concludes:

And, partly as a result of his efforts, the world of foreign affairs is relatively uncontentious right now. Foreign policy is not a hot campaign issue. Mitt Romney is having a great deal of trouble identifying profound disagreements. If that’s not a sign of success, I don’t know what is.

Again we see a prime legacy of the Obama presidency: the transformation of what had been contentious disputes into harmonious bipartisan consensus. And we also see again that one of the biggest myths of American political discourse is that bipartisanship is so terribly and tragically rare.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of three New York Times Bestselling books: two on the Bush administration’s executive power and foreign policy abuses, and his latest book, With Liberty and Justice for Some, an indictment of America’s two-tiered system of justice. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

Surveillance experts at the National Security Agency won’t tell two members of the Senate’s intelligence oversight committee how many Americans’ emails and phone calls they’re poking into without a warrant as part of its sweeping counterterrorism powers because such a review “would itself violate the privacy of U.S. persons” – and besides, figuring that out is “beyond the capacity” of the NSA. Think Orwell’s doublethiink.

“Political language… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

REPORTING FROM ISLAMABAD, PAKISTAN — A U.S. drone missile strike killed four suspected militants in northwest Pakistan on Wednesday, ending a six-week hiatus in such attacks, imposed by Washington following American airstrikes late last year that killed 24 Pakistani soldiers and severely marred relations between the two nations.

After repeatedly boasting about it in public, Obama officials tell courts it cannot confirm the CIA drone program

The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:

. . .

What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.

Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.

So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.

But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.

This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any evidence or information that would test those claims and/or contradict them.

Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive power and secrecy powers, understands how abusive this is:

First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).

Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.

Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the Most Transparent Administration Ever™ that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.

This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another means of how the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationallyvowed to reverse.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law

President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012. (AP Photo/Evan Vucci) (Credit: AP)

(updated below)

The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.

The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:

So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.

What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:

THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.

(Applause.)

JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?

THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –

JAY LENO: Right.

THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.

(Applause.)

Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.

So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.

Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:

The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”

This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:

After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.

This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.

There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.

* * * * *

Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.

* * * * *

Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.

UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.

Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . . Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”

He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamousif-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

The Canada-U.S. “Beyond the Border” agreement announced in December 2011 promotes bilateral “friendship, sharing, and collaboration.” These are excellent values. They are instilled in kindergarten. But if Canada wants to build an adult relationship with the United States, we need to openly address issues of civil rights, due process and accountability.

Nowhere is this more the case than with respect to the dramatic changes proposed for North American security. Numerous privacy concerns have already been raised with respect to increased data-gathering and cross-border information sharing. Very little attention, however, has yet been directed to the worrisome proposals for more integrated cross-border law enforcement.

Under the Beyond the Border agreement, the Shiprider pilot program will be standardized. Shiprider is an extension of Integrated Border Enforcement Teams (IBETs) which enable bilateral information and intelligence-sharing across the RCMP, the Canada Border Services Agency (CBSA), the U.S. Customs and Border Protection/Office of Border Patrol, the U.S. Bureau of Immigration and Customs Enforcement, and the U.S. Coast Guard. The main target of IBETs has been organized crime such as drug smuggling, contraband weapons and human trafficking.

The Shiprider program will extend IBETs to shared waterways and seaways, and will also permit cross-border law enforcement. Designated RCMP and U.S. Coast Guard officers will jointly operate vessels on patrol, and will be authorized to enforce the law on either side of the border. The Harper government has also tabled legislation, Bill C-60: Keeping Canadians Safe (Protecting Borders) Act, that would bestow these designated officers with enforcement capabilities equivalent to the RCMP — anywhere in Canada!

It is clear, therefore, that these cross-border law enforcement arrangements are not just about information-sharing. They are about creating interoperable security practices and personnel. As such they raise troubling questions regarding accountability, due process and civil rights.

When and where does a cross-border initiative start and end? Who decides? Who has jurisdiction over the information that is gathered? Who is responsible if something goes wrong? How might national security concerns be used to sidestep the law with respect to these designated officials?

Another “Beyond the Border” pilot project, Next-Generation, also raises concerns with regards to its widening security mandate. Next-Generation officers will be located between ports of entry. Like the IBETs, the Next-Generation program will facilitate intelligence and information-sharing. They will also, like the Shiprider program, allow designated officers to enforce the law on either side of the border.

But Next-Generation will also expand the security mandate of these officers by drawing together organizations responsible for the defence of national security: the RCMP, Public Safety Canada, the Department of Justice Canada, the US Department of Justice and the US Department of Homeland Security. These are not just border agencies, but agencies mandated with the full weight of national security.

The “Beyond the Border” agreement will also bring Canada more closely in line with the extensive reach of the Department of Homeland Security. Criminal infractions can now be treated with the full force of threats to national security. But, for example, is the selling of contraband cigarettes a matter of national security? Are smugglers of prescription drugs on a par with terrorists?

As the title “Beyond the Border” suggests, the agreement is not just about efficient trade or border security. It is not about those kindergarten values of playing nicely together, sharing toys and secrets. This agreement is about deepening and extending the national security mandate across the two countries, well away from the border.

The public discussion about this border deal needs to grow up fast, in order to cut through the government’s infantilizing PR and face up to the ways that the Harper government is expanding the national security state, both in domestic policy and in our international relations.

Emily Gilbert is director of the Canadian Studies program and associate professor of Geography at the University of Toronto. She has written extensively on North American deeper integration, North American security, borders, biometrics and citizenship

Roger’s note: the military, the police, the FBI, the CIA, etc. are everywhere: in our high schools, our colleges and universities, etc.; they represent the accelerated militarization of our culture and are characteristic of police states everywhere; the images we are seeing of the police repression of the Occupy movement at Davis, Oakland, Berkeley, New York, etc. are hardly distinguishable from those we are seeing in Egypt and Syria.

Two shocking scandals. Two esteemed universities. Two disgraced university leaders. One stunning connection. Over the last month, we’ve seen Penn State University President Graham Spanier dismissed from his duties and we’ve seen UC Davis Chancellor Linda Katehi pushed to the brink of resignation. Spanier was jettisoned because of what appears to be a systematic cover-up of assistant football coach Jerry Sandusky’s serial child rape. Katehi has faced calls to resign after the she sent campus police to blast pepper spray in the faces of her peaceably assembled students, an act for which she claims “full responsibility.” The university’s Faculty Association has since voted for her ouster citing a “gross failure of leadership.” The names Spanier and Katehi are now synonymous with the worst abuses of institutional power. But their connection didn’t begin there. In 2010, Spanier chose Katehi to join an elite team of twenty college presidents on what’s called the National Security Higher Education Advisory Board, which “promotes discussion and outreach between research universities and the FBI.”

Spanier said upon the group’s founding in 2005, “The National Security Higher Education Advisory Board promises to help universities and government work toward a balanced and rational approach that will allow scientific research and education to progress and our nation to remain safe.” He also said that the partnership could help provide “internships” to faculty and students interested in “National Security issues.”

FBI chief Robert Mueller said at a press conference with Spanier, “We knew it would not be necessarily an easy sell because of the perceived tension between law enforcement and academia. But once we’ve briefed President Spanier on the national security threats that impact all of you here at Penn State and at other universities, it became clear to all of us why this partnership is so important. “

But the reality of this partnership is far different. Its original mandate was about protecting schools from “cyber theft” and “intellectual property issues.” As has been true with the FBI since Hoover, give them a foothold, and they’ll take off their shoes and get cozy. Their classified mandate has since expanded to such euphemisms as “counter-terrorism” and “public safety.” It also expanded federal anti-terrorism task forces to include the dark-helmeted pepper-spray brigades, otherwise known as the campus police.

As Wired magazine put it in 2007, “presidents are being advised to think like ‘Cold Warriors’ and be mindful of professors and students who may not be on campus for purposes of learning but, instead, for spying, stealing research and recruiting people who are sympathetic to an anti-U.S. cause.”

Chancellor Katehi said in 2010 that despite these concerns, she was proud to join the NSHEA because “it’s important for us to learn from the FBI about the smartest, safest protocols to follow as we do our work, and it is equally important that the FBI has a solid understanding of matters of academic freedom.”

Sacremento’s FBI special agent in Charge, Drew Parenti, praised her involvement, saying, “The FBI’s partnership with higher education is a key component in our strategy of staying ahead of national security threats from our foreign adversaries…. we are very pleased that Chancellor Katehi has accepted an appointment to serve on the board.”

As for the actual meetings between the presidents of academic institutions and the FBI, those discussions are classified. If you are a rabble-rousing faculty member or a student group stepping out of line, your school records can become the FBI’s business and you’d be none the wiser.

Chris Ott, from the Massachusetts ACLU, said of the NSHEA, “The FBI is asking university faculty, staff, and students to create a form of neighborhood watch against anything that is so called ‘suspicious.’ What kinds of things are they going to report on? Who has the right to be snitching? One of the scary things is who [on the campuses] will take it upon themselves to root out spies?”

In the wake of the scandals that have enveloped and now destroyed the careers of Spanier and Katehi, the very existence of the NCHEA should now be called to question. Given the personal character on display by these two individuals, why should anyone trust that the classified meetings have stayed in the realm of “cyber theft” and intellectual property rights? What did the FBI tell Chancellor Katehi about how to deal with the peacefully assembled Occupiers? Was “counter-terrorism” advice given on how to handle her own students?

As for Spanier, how much of Sandusky’s actions at Penn State, which were documented on campus but never shared with the local police, was the FBI privy to? Why did the school hire former FBI director Louis Freeh to head up their internal investigation? Does that in fact represent a conflict of interest? And most critically, did the “chilling effect” of a sanctioned FBI presence at Penn State actually prevent people from coming forward?

When Spanier was asked in 2005, if he was concerned about whether a formal partnership with the FBI would cause objections he said, “If there is an issue on my campus, I’d like to be the first person to hear about it, not the last.” In the context of recent events, it’s probably best to let those words speak for themselves. But fear not for the futures of these two stewards of higher education and academic freedom. Maybe Spanier can put his experience as a federal informant to good use from inside a federal prison. As for Katehi, if, as suspected, she’ll be unemployed shortly, perhaps she can take advantage of one of those fabulous internship opportunities having the FBI on campus provides.

Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way. That’s because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him.

As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: “Here, where Padilla’s damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims” (emphasis added)). With one rare exception, federal courts, as usual, meekly complied. Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.

The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites. Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla — on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber — and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla’s imprisonment on the grounds of “mootness” (he’s no longer being held without charges so there’s nothing to decide).

Not content with what was done to Padilla, the Bush DOJ — and then the Obama DOJ — contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government’s. Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla’s arguments. It then took the very unusual step of vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:

Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors . . . .

As the dissenting judge explained, this decision is extraordinary because trial judges — not judges sitting afterward on appeal — are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence. But more so, in this case, a sentence less than the full maximum was warranted because “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.” About that point, the dissenting judge documented:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at he military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority.

Thus: American officials who are responsible for this “inhumane” and “cruel” abuse of detainees act with full impunity, as usual. Those who are its victims are not merely denied all redress (though they are), and do not merely have the courthouse doors slammed in their faces in the name of secrecy, national security and presidential power (though they do), but they are also mercilessly punished to the fullest extent possible.

It should be said that part of what happened here is just the typical politicization of the judiciary, as the two-judge majority was comprised of a hard-core right-wing Reagan/Bush 41 appointee from Alabama (Joel Dubina), while the other was one of Bush 43’s most controversial appointees, the former Alabama Attorney General who was filibustered by the Democrats and allowed onto the bench only by virtue of the “Gang of 14” compromise (William Pryor). Meanwhile, the dissenting judge was born in Mexico to Syrian parents and, after moving to Miami at the age of 6, became the first female judge (as well as the first Hispanic and Arab American judge) on the Florida Supreme Court (rising to Chief Justice), and was a Clinton appointee to the federal appeals court (Rosemary Barkett); Barkett, incidentally, dissented from an 11th Circuit ruling denying a habeas petition to Troy Davis, the African-American death row inmate scheduled to be executed by the State of Georgia this week despite mountains of evidence showing his innocence. So this episode highlights one of the few genuine differences that remain between the two parties that can truly impact people’s lives: their judicial appointments.

But the overriding theme is what we have seen time and again, that which — as it turns out — is the subject of my book to be released next month: America is plagued by a two-tiered justice system in which political and financial elites enjoy virtually absolute immunity for even the most egregious of crimes, while ordinary Americans (and especially fully stigmatized ones like Padilla) are subject with few defenses to the world’s largest and one of its most merciless systems of punishment. Thus do Jose Padilla’s lawless jailers and torturers walk free and prosper, while no punishment is sufficiently harsh for him.

Padilla was never even charged with, let alone convicted of, having anything to do with a “dirty bomb.” “Dirty Bomber” was the villain nickname given to him by Bush officials and mindlessy repeated by its media to justify the treatment to which he was subjected. The U.S. Government gave up long ago using this accusation to demonize him (NYT on his conviction: “The dirty bomb accusations were not mentioned during Mr. Padilla’s three-month trial here“), but their lying “watchdog media” servants continue unabated. Who would possibly object to a longer prison term for A Dirty Bomber who tried to detonate radioactive weapons in American cities? The fact that not even the Government charged with him that is no deterrent to its media continuing to claim he did.